JMcG-v-Department for Communities (DLA) [2016] NICom 63

Decision No:  C17/16-17(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 18 August 2015

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Craigavon.

2.	For the reasons I give below, I grant leave to appeal.  I allow the appeal under Article 15(8)(b) of the Social Security (NI) Order 1998, set aside the tribunal’s decision and refer the appeal to a newly constituted tribunal for determination.

	REASONS
	
	Background

3.	The applicant claimed disability living allowance (DLA) from the Department for Social Development (the Department) from 2 June 2014 on the basis of needs arising from type 2 diabetes, chronic obstructive pulmonary disease (COPD), psoriasis, depression, anxiety carpal tunnel syndrome and hypertension.  The Department obtained a report from the applicant’s general practitioner (GP) on 21 August 2014. On 12 September 2014 the Department decided on the basis of all the evidence that the applicant did not satisfy the conditions of entitlement to DLA from and including 2 June 2014.  The applicant appealed.

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM), a medically qualified member and a disability qualified member.  After a hearing on 18 August 2015 the tribunal allowed the appeal, awarding low rate care component for a period from 2 June 2014 to 1 June 2016.  The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 20 November 2015.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal but leave to appeal was refused by a determination issued on 11 January 2016.  On 9 February 2016 the applicant applied to a Social Security Commissioner for leave to appeal. 

	Grounds

5.	The applicant submits that the tribunal has erred in law on the basis that its explanation for rejecting the evidence of her consultant respiratory physician was wrong, as the consultant was asked about her condition as of 12 September 2014.

6.	The Department was invited to make observations on the applicant’s grounds. Mrs Hulbert of Decision Making Services (DMS) responded on behalf of the Department.  Mrs Hulbert submitted that the tribunal had not erred in law as alleged and indicated that the Department did not support the application. 

	The tribunal’s decision

7.	The tribunal heard oral evidence from the applicant and had sight of the Departmental submission and the applicant’s medical records.  The applicant indicated that she had been given an oxygen cylinder in March 2015 and had arthritis in knees and hips and ”discs out” in her back.  She had oedema in her legs.  The GP recorded that she had ongoing low back pain, and hip/knee/foot pain secondary to morbid obesity.  The tribunal considered that evidence at the date of claim, including the applicant’s statement on her claim form, did not suggest that she was virtually unable to walk. 

8.	The tribunal refers to a report provided by the applicant after the date of decision.  In the report dated 31 December 2014 the tribunal noted that the consultant ticked a box to indicate that the applicant could walk less than 50 metres before feeling severe discomfort or having to stop.  The tribunal noted that the applicant stated that her condition had worsened since the date of claim and did not find the report to be indicative of a restriction at the date of claim.  It found in the light of the available evidence that the applicant was not virtually unable to walk. 

Assessment

9.	The ground relied upon by the applicant is essentially that the tribunal has made a material error of fact in rejecting the report of the consultant. Whereas the tribunal notes that the report is dated 31 December 2014, it does not observe that the consultant was asked to give an opinion as of 12 September 2014 – the date of decision. 

10.	Mrs Hulbert points out that the tribunal nevertheless says that it did not find anything in the GP records provided which confirmed this severe restriction.  The tribunal continued “However, we note the report is dated over six months after the date of claim… We did not find that this report was indicative of a restriction at the date of claim”. 

11.	It appears to me from that part of the record of proceedings that the tribunal had not observed the endorsement to the consultant that the questions were about how the applicant was “as of 12/09/14”.  Mrs Hulbert submits, in essence, that any error was not a material error since the tribunal considered other evidence before reaching its decision. 

12.	Nevertheless, it concerns me that the tribunal may have misinterpreted the opinion of the consultant, believing it to relate to December 2014 when it was completed.  It refers to circumstances at the date of claim, which was 2 June 2014.  However, evidence of the applicant’s condition at the date of decision was admissible and might not necessarily have been expected to reflect circumstances three months earlier in June 2014. 

13.	I consider that it is arguable that the tribunal has erred in law and I grant leave to appeal.  On balance, I consider that the tribunal may have made a mistake of fact relating to the consultant’s report which was material to the outcome of the appeal which has rendered the proceedings unfair. 

14.	I consider that I should allow the appeal, set aside the tribunal’s decision and refer the appeal to a newly constituted tribunal for determination. 

(signed) O Stockman
Commissioner

15 September 2016